Responsible and sometimes critical comment on topical legal matters of general interest. This blog does not offer legal advice and should not be used as a substitute for professional legal advice.
Pro Aequitate Dicere

Friday, 24 January 2014

The Daily Mail asks a good question ....

The Daily Mail 24th January asks why a "violent thug" - named as Vitalijis Zavjaloves (aged 22) - did not receive a sentence of imprisonment for his attack on Brian Gallagher in Wigan town centre last December. It is a fair question. Zavjaloves had pleaded guilt to assault by beating and, at Wigan and Leigh Magistrates' Court, he was sentenced to a suspended sentence order involving four months imprisonment suspended for 12 months with a specified activity requirement, 250 hours unpaid work. In addition, £600 in compensation was ordered, a surcharge of £80 and £85 in costs.

According to the Daily Mail report, Zavjaloves had been drinking that night. His legal represetative informed the court that Zacjaloves was not a violent individual. (That appears to mean that he was not usually a violent individual)! It was also added that he regrets what has happened and is remorseful. It is not clear what actual demonstration of remorse there was. There is only the assertion that he is remorseful. After delivering the kick to Gallagher's head, Zavjaloves was "captured on CCTV cameras laughing with a friend as he left."

The relevant sentencing law is in the Criminal Justice Act 2003. In particular, section 152(2) states:

"The court must not pass a custodial sentence unless it is of the opinion that the offence, or the combination of the offence and one or more offences associated with it, was so serious that neither a fine alone nor a community sentence can be justified for the offence."

The court will have applied the Magistrates' Court Sentencing Guidelines and they will have had the benefit of a pre-sentence report (not available to us). Such a report would give the sentencer a more detailed analysis of the offence and considerable information about the offender. I think that the relevant page in the guidelines would be page 213 (Common Assault). [Is there an element of 'undercharging' here?]. That guideline states that, for a Category 1 offence, the sentencing range is a "high level community order to 26 weeks custody." It will be noted that using a "shod foot" as a weapon is an aggravating feature.

I expect that the court will have wrestled with that guideline and they can hardly be severely criticised for the actual sentence they reached. It is well within the permissible range of sentencing and, after all, it is a statutory requirement that sentencing guidelines have to be followed unless it would be contrary to the interests of justice to do so. If a court departs from a guideline then it must state its reasons for doing so.

For my part - and I emphasize that this is only my view - there were good reasons here to depart from the guideline. It is perhaps by luck alone that Gallagher was not very seriously injured or even killed. Furthermore, the Chairman of the court reportedly indicated that there is serious concern about violence in Wigan - "It was a vicious attack - we are sick and tired of seeing incidents like this in Wigan town centre - You kicked his head as if it were a football, he had no way of defending himself and he did not know it was even coming" Nevertheless, the court was lenient with Zavjaloves because he had shown remorse and it was an isolated incident and he had previous good character.

It would be interesting to know how the compensation will be paid. A compensation order would not have been made had Zavjaloves been actually sent to prison. Usually, the court orders monetary payment at £x per fortnight (or some other specified time period). It may therefore be a very long time before Mr Gallagher receives the full compensation. It is of course open to Mr Gallagher to sue Mr Zavjaloves in the civil court but the compensation award would be taken into account in any damages awarded.

Notes:

1. Aims of sentencing are set out in the Criminal Justice Act 2003 section 142 - (a) punishment of offenders; (b) reduction of crime (including its reduction by deterrence) .... (c) protection of the public ...

2. It is the normal practice to reduce the sentence if a guilty plea is entered. For a guilty plea at the earliest possible stage, the reduction will be one-third. Thus, 6 months imprisonment reduced to 4.

7 comments:

It is clear the Justices decided that the offence passed the custody threshold. Furthermore, they sentenced him to six months (the maximum available to them) less the guilty plea discount. They then went on to suspend the sentence. We do not have all the facts of the case, nor of the defendants circumstances, but on the basis of the facts we do know it does seems strange to suspend. From what we do know this offence was very serious of its type, with aggravating features. The justices will have had to give reasons in open court for their decisions. We do not know what those reasons are nor is there any way we can find out. Surely it is about time that magistrates courts started to publish reasons on their websites, or at least made them publicly available after enquiry.

I agree with your comments and especially that about publishing sentencing remarks. More of them are now published by judges in the Crown Court and occasionally by District Judges in the Magistrates' Courts. For lay justice decisions we seem to just have the media as a source of in formation - limited as it is and there are fewer and fewer real crime reporters these days.

Yes - no Magistrates' Court websites and I suspect that you are right in saying that they would not be resourced anyway. The Judiciary (public) website could be a possibility if there was a will to do it.

I understand some magistrates courts do have websites but, even if none have, then reasons, as announced in court should be available for public scrutiny on request. I was a magistrate, now retired, I conducted many sentencing exercises and found the sentencing pro forma to be very useful. It is true that it is handwritten, but if properly used it conveys all the necessary information to explain the Justices' reasoning. When I was active I worried about the courts becoming more and more detached from the public they served; there are fewer courts and fewer court reporters. It is in everyones interest to make the courts more accessible and transparent. Cost benefit analysis? yes, but a little wider than the just cost of running a website please.

The decision to suspend a prison sentence or not is always a difficult one. Perhaps wrongly, what I suspects weighs heavily in the balance is the lack of previous convictions - there is I would say a strong desire in the magistracy to keep offenders out of prison and in the hands of Probation for as long as possible (now Probation is being 'transformed' that may not continue to be the case of course).

This was a prison sentence which is highly likely to be activated if the gentleman offends in the next 12 months - and will be on his record as such. 250 hours of unpaid work is time consuming and onerous. The arrangements for compensation payment are in my opinion not fit for purpose but the lowly magistrates court can do nothing about that!

The Mail report says injury was caused but does not say how much. Had there been any the cps would have had the option of charging as actual bodily harm. The cps guidance says:[quote]As a starting point, where there is no injury or injuries which are not serious, the offence charged should generally be Common Assault. Where there is serious injury and the likely sentence is clearly more than six months' imprisonment the offence charged should generally be ABH. And where there is really serious injury the offence charged should generally be GBH.[/quote]

That might suggest that there were no serious injuries; however, regretably there does seem to be a tendancy to undercharge offences such as these to keep them in the magistrates court where prosecution is quick and cheaper.

Perhaps this should have gone up to the Crown Court where much higher penalties would have been available.

I have never heard of a case in the magistrates court where guideline 5.3 and 5.4 Reduction for Guilty Plea has been applied. It feels more appropriate to the higher court.

About Me

Peter Hargreaves LL.B (Hons). Live in Greater Manchester but spend as much time as possible in N. Yorkshire. Politically, closest to the Lib Dems than any other! Retired after 40 years in civil aviation. Life long interest in law about which there is much misinformation and misunderstanding. My blog seeks to look at topical items and their complexities and tries to explain things in a straightforward way. Obiter means "by the way" and my posts are "by the way." I hope that the posts are responsible, balanced and informative but it is for you, the reader, to make up your own mind. I do not seek to persuade you. At all times I will try to speak for fairness - Pro Aequitate Dicere.